And how is it communicated to those who need to know it?

By Jim Calloway

What do you do when the client file is closed? Follow your firm’s policy. Your law office should have both a written file closing policy and a closed file destruction policy.

Oklahoma doesn’t have a set rule on when a lawyer can destroy a closed client file. But the Oklahoma Rules of Professional Conduct provide in Rule 1.15(a) Safekeeping Property  “Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.”

Logic dictates that “complete records” includes not just bank statements, but also receipts, communications from client, pleadings and all other items related to the trust account. So, unless one wants to go through everything in a client file and remove all those types of records, your file destruction policy will be at least five years, and my advice is adopt six years for simplicity’s sake. It is also worthwhile observing that the statute of limitations for breach of a written contract is five years.

Clients should be informed of (and agree to) the file destruction policy by including the terms in the engagement agreement and reminding them of the policy in your final file closing communication.

Today, closing a file means the lawyer or a trusted legal assistant goes through the entire file to return all original documents to the client.  This needs to be done promptly because the client could relocate. If you are returning valuable originals, then warn the client to protect them carefully. But your engagement should not include being a bailee-for-free for a number of years. It is a simple rule to apply—a client file is not closed until everything that should be returned to the client has been returned to the client and the file is ready for future destruction without further review.

A few special situations merit a different destruction date. If you settle a friendly suit for a minor plaintiff, the law allows them to bring an action relating to their matter for a year after they reach majority age. You wouldn’t want to destroy that file with all the supporting records until that time has passed. And if you have a former client whose behavior caused concerns, that might be a file you decide to retain for longer than usual.

What about digital client files? Can’t you keep them forever? Technology allows you to do that. But it is often not a good idea. If you represent a corporate client with its own file destruction policy, you should be as consistent with that as possible. However, if you do have a complete digital client file with a copy of every document, it is generally safe to destroy the physical file earlier than six years. But make certain that information is backed up.